Appropriation process delayed until 2015

A spirited debate before the Colorado Water Conservation Board in Denver last week featured local officials expressing their opinions on a plan to increase flows on the lower Dolores River.

A live Internet broadcast of the hearing presented views for and against appropriating new minimum in-stream flows on a 34-mile section of the river below the confluence of the San Miguel River.

Representatives from the Dolores Water Conservancy District, in Cortez, and the Southwestern Water Conservation District, in Durango, attended the meeting and urged the CWCB to delay the matter. Local officials say new in-stream flows could threaten agricultural users depending on McPhee Reservoir, and they want more time for negotiations with local federal agencies on newly implemented river regulations.

But they were rebuffed by the CWCB and state officials who argued the in-stream flows were a good way to protect struggling native fish and avoid intervention by the federal government moving to list them under the Endangered Species Act.

"I think we need to demonstrate to BLM and Forest Service that we are moving in good faith, and not just maintain the status quo," said Mike King, executive director of the Colorado Department of Natural Resources, and ex-officio CWCB director.

In-stream flows are appropriated by the CWCB in rivers and lakes to preserve and improve Colorado's natural environment to a reasonable degree.

These water rights are nonconsumptive uses of water between specific points on a stream. They are administered within the state's water right priority system and are junior to existing water rights but senior to future water claims.

The proposed ISF on the Dolores is for 900 cfs to flow for 61 days in the summer to aid the flannelmouth sucker, bluehead sucker, and roundtail chub below the San Miguel Confluence.

Eleven organizations commented on the proposed ISF, some for, and some against.

Mike Preston, general manager for the DWCD, urged the CWCB to delay their intent to appropriate the new Dolores ISF.

"These ISFs are intertwined with recent federal actions that add up to create considerable uncertainty and risk for the Dolores Project," he said. "We ask for the delay to straighten out these issues with federal land agencies."

The ISF proposal comes on top of recent federal action on the Dolores that elevates two additional native fish, the bluehead and flannelmouth suckers, to a category called Outstanding Remarkable Values.

ORVs are used to category special aspects of rivers like the Dolores that are designated "suitable" for National Wild and Scenic River status.

Creating that official high level of protection would require and act of Congress. But reservoir managers oppose even a hint of Wild and Scenic because if ever designated, those rivers come with a federally reserved water right that could force water from McPhee to be released downstream for the benefit of native fish.

Since 1976, the Dolores from the dam to Bedrock has been managed to protect a "suitability" standard. Recently, more downstream sections are being categorized that way, to the dismay of reservoir manager and excitement of environmentalists.

"The Uncompahgre and Grand Junction field offices are also moving toward suitability designations and also calling out the three native fish, so that is the complex of issues we need time to sort through and add on top of that a very large in-stream flow," Preston said.

CWCB director John McClow responded that the ISF was a good solution and questioned why it had so much resistance.

"I'm having a difficult time connecting the dots here," he said. "We have argued to federal agencies that in-stream flows are a better option than suitability. If we declare intent to appropriate, it lets the federal agencies know that we are serious and are going to do this and provide the protection for these fish."

Theresa Conley, of Conservation Colorado, commented that the new CWCB in-stream flows on the Dolores River are appropriate and strikes the right balance between human activity and the environment.

Montrose County commented they were concerned that much of the burden for meeting the proposed in-stream flow would fall on the San Miguel, a tributary which depends solely on unpredictable snowmelt.

"We are concerned with the amount of the in-stream flow proposal and its cumulative impact on the San Miguel," said David White, a Montrose County Commissioner.

John Porter, president of the Southwestern Water Conservation District, also requested the in-stream flow proposal be delayed.

"There are new ORV's in the federal plan that we don't think fit the river," Porter said. "When new in-stream flows and federal plan come town all at once it becomes overwhelming, and so we need time to step back and look at the impacts."

Peter Mueller of The Nature Conservancy supported the new in-stream flows.

"I look at it as an opportunity to take a step forward and protect the resources," he said.

Bruce Whitehead, executive director of Southwestern Water Conservation District, urged CWCB members to put themselves in the shoes of water managers.

"Moving forward with this in-stream flow without time to negotiate an alternative to suitability means there could be both," he said. "Turn the tables. Consider if your basin was faced with suitability coupled with one of the largest in-stream flows impacting a major irrigation project."

Following the testimony, the CWCB voted unanimously to declare their intent for appropriating the proposed in-stream flows on the Lower Dolores River.

However, to give time for stakeholders to negotiate with the BLM on possibly dropping Wild and Scenic suitability, the hearing on the matter was delayed until January 2015.

"Either you have confidence in in-stream flows or you don't," said CWCB member Diane Hoppe before her vote. "I'm hopeful that if we're going to implement a new in-stream flow on the Dolores that suitability would be off the table."